This September 11th, I traveled with my little boy down the tree-lined beauty of Savannah to Reynolds Square where, amidst the draped Spanish Moss, historic Christ Church rang bells made by Revere and Sons in solemn observance of that horrific day. This year, the bells ring in the President’s decision to escalate conflict with the Islamic State (which, as many note, is neither). With that decision comes all the attendant wrangling over the gravity and priority of threats to U.S. national security; the locus, form, legitimacy, and duration of authorization of U.S. involvement in armed conflict; and the political ramifications of policy choices.
In this post, I offer a few thoughts about the kind of reflections I have on September 11th, and why I find the present debates particularly disheartening this long after the attacks.
September 11 become one of those rare moments that, for each of us, fuses our personal history with human history. We all remember where we were, what we were doing, who we were at that moment the clock stopped for some three thousand people. For my part, I recall, vividly, a beautiful morning that prompted me to walk from my apartment in the Logan Circle area of Washington, D.C. to Skadden’s offices located across the street from the White House and Treasury Department complex. I also recall emerging from those offices about an hour later to a world that was unrecognizable – masses of dazed people emptying out of office buildings and walking north on 14th Street as Humvees rolled southward and the city became militarized. All of us were attached to earlier versions of cell phones that by that time had the utility of a paper weight under the crushing burden of searches for the safety of loved ones.
For me, reflections on that day inevitably turn to what became of us thereafter. Here, too, the personal and historical narratives intertwine. My colleague who had been a Secret Service agent in a former life left the law firm to join the first-generation of newly trained Air Marshals. A close childhood friend was the union steward of the murdered Boston-based flight attendants, which set her, by this tragic serendipity, on a path to become the International President of the Association of Flight Attendants. Another friend, who was a former campaign and government colleague, obtained an age waiver to join an Army special operations unit in Afghanistan, only to become a hero here at home while rendering aid to victims of the Boston Marathon bombing. For my part, I never thought law school would lead me to fly on Blackhawk helicopters cutting through the tightknit, rocky terrain of eastern Afghanistan; or drive by motorcade from Islamabad to Peshawar, Pakistan; or feign that I had meaningful security at a hotel in Dubai in order to interview witnesses alleged to have paid off the Taliban with U.S. contractor funds. I certainly did not anticipate I would encounter the ugly concept of “Predator porn,” the imagery of dead detainees, or the neglect of wounded warriors at Walter Reed.
Of course, at the center of our remembrance are all those families, workplaces, and religious communities that were left to stitch irrevocably torn social fabric. All of us changed a little. Some of our lives changed a lot.
Like individual citizens, our country has had a similar disorienting post-9/11 experience. We have fought wars in Iraq and Afghanistan. We have run counterterrorism operations all over the world. Bin Laden and many other senior al Qaeda leaders, and their allies, have been killed. Many others, like Khalid Sheik Mohammad, are in custody. Still others, like Ayman al-Zawarhiri, remain at large. We reorganized our government to establish the Department of Homeland Security and Office of the Director of National Intelligence. With some notable exceptions, we have maintained our commitment to religious pluralism, ethnic diversity, and anti-discrimination in this country.
We have wrestled with detention, interrogation, lethal targeting, adjudication, and surveillance. We degraded ourselves by employing torture tactics. We have forged alliances, tested friendships, done business with rogues, engaged in requested kabuki, and enraged populations. There is so much water under the bridge: so much progress, so many mistakes.
So, thirteen years later, I have been dwelling on three big questions that are fundamental to the post-9/11 legal, moral, political, and policy issues we still face and yet seem as elusive as ever.
(1) Should we prioritize geopolitical or terrorism threats?
A few years ago, I heard a story about a conversation between an American and a Chinese diplomat. The American diplomat asked what was keeping the Chinese diplomat busy, to which the Chinese diplomat replied, “I’m gobbling up resources in Africa and South America while you are bogged down in small Middle Eastern countries.” Old, 20th Century geopolitical threats and concerns are ascendant: Russia menaces eastern Europe and has adopted a belligerent foreign policy while China pursues a blue-water navy. China territorial assertions and power projections have touched off enough paranoia to give political cover for ambitions within Japan to remilitarize.
At the same time al Qaeda proper has been degraded, al Qaeda-ism continues to coarse throughout South Asia, the Middle East, and the northern and eastern Africa. As Steve points out in “The Guns of September,” we still have a somewhat fuzzy picture of the nature of the Islamic State’s threat capacity and ambition. (I find Dan Byman’s analysis particularly helpful.) The Islamic State’s territorial gains are a serious concern. Beheading of American journalists simply because they are American is grotesque and the Islamic State’s numerous human rights violations call out for response from civilized humanity.
The simple answer, of course, is that we need to meet both types of threats. It becomes far more difficult, however, to address these threats as relative priorities for expenditure of American blood, treasure, and resolve. How do we compare geopolitical apples to terrorism’s oranges? I fear we are fighting David Petraeus wars in a Zbigniew Brzezinski world.
(2) How do we manage our constitutional polity without ‘war’ and ‘peace’?
The distinction between wartime and peacetime has been obliterated. The distinction has consequences in so many links in the national security chain: conflict authorization, exigency justifications, transparency limitations, and adjudication regimes.
Our Constitution contemplates distinct statuses of War and Peace, but modernity puts that fiction (which it always was) to the test. Persistent terrorist threat mitigation is truly a long, twilight struggle that does not give us the benefit of clean endpoints. Over the last two-and-a-half centuries, we have grafted on a patchwork of war powers legal regimes and doctrines—about which we have very little consensus regarding constitutional values—designed to render functional national security capacity with a nod toward congressional involvement and policy-making in the age of functionally enhanced executive power. Perhaps that is just the kind of separation-of-powers tension we all need to live with.
However, there are many other legal consequences of being “at war’ or “on a war footing” – like effects on due process, transparency, and civil liberties – that don’t relate to congressional involvement in the initiation or support of U.S. involvement in armed conflict. We cannot allow the Forever War to demolish the state’s separation from, and accountability to, its citizens.
We commemorate the pain of the last thirteen years in the midst of a another struggle about the legal vehicles and constitutional theory of authorization to engage in conflict, this time over U.S. military action against the Islamic State from Iraq to Syria. Why haven’t we come to some semblance of consensus about how to manage our war powers? Yet Sisyphus pushes the boulder up the Hill.
(3) Can we overcome our political dysfunction?
The old maxim that politics ends at the water’s edge seems quaint and naïve. What better symbol of our political breakdown than a blistering attack on a sitting President by a former Vice President on the eve of 9/11 that was calculated to preempt a presidential address on a matter of overseas U.S. military deployment?
Jack Goldsmith effectively represents the view that express congressional authorization confers legitimacy on presidential deployment decisions that would otherwise put undue stress on the constitutional scheme. Unfortunately, the President does not see congressional authorization as essential (because he believes he has the legal authority) and Congress apparently has little appetite to go on record. Earlier this week, my outgoing Congressman, Rep. Jack Kingston (R-GA), described Congress as liking the idea that the President might assert the authority to engage in airstrikes in Syria without congressional approval. He said,
“It’s an election year. A lot of Democrats don’t know how it would play in their party, and Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.”
To be fair, Rep. Kingston supports a congressional authorization vote but he made this observation to explain behavior of his colleagues.
I agree with Jen that it would be a colossal failure of our democratic processes should Congress shirk its responsibility and acquiesce to the President’s construction, or constructive amendment, of the 2001 AUMF. While Congress’s profiles in (lack of) courage share a rare moment of bipartisanship, I find it particularly depressing that the motivations for congressional Republican inclination to avoid ownership includes the desire to keep powder dry so as to obtain political advantage in the event of the President’s (i.e., America’s) policy failure.
We have already experienced significant political dysfunction on the debt ceiling, budget, and immigration. Now it threatens, in increasingly profound ways, our national security policy. We have to find a way to rein in our partisan scorched-earth incentives and bring our political discourse back to a median of good faith.
These are the questions that vexed me this morning as I had my first conversation with my son about remembering people that were hurt on 9/11. Under that tree canopy of Reynolds Square, I hoped against experience that those bells of September ushered in a new era of enlightenment.